This month marks the 20th anniversary of the Senate vote rejecting the Bork nomination (for anybody who wants to celebrate—or mourn—the exact date is October 23). In a series of three postings, I will try to take stock of what has happened to the confirmation process since the Bork hearings, drawing on themes from my recently published book, The Next Justice: Repairing the Supreme Court Appointments Process (Princeton University Press, 2007). (Many thanks to JB for allowing me to appear here as a guest blogger!).

As anybody who watched them will remember, the Bork hearings were unforgettable political theater. They mixed hyperbole and scandal with sophisticated constitutional argument. Bork, unlike any nominee before or after him, spoke frankly about his controversial jurisprudential views. At the end of the day, the vote was not especially close: the nomination failed, 58-42.

People divide about whether the hearings were a sordid debacle or a triumph of constitutional politics. I’m on the triumph side. The Senate rejected Bork for exactly the reasons that Ronald Reagan had nominated him. In his superb book Pursuit of Justices, the historian David Yalof reports that the Scalia and Bork nominations were the product of an exhaustive Justice Department process designed to identify the most ideologically conservative judges sitting in the federal appellate courts.

Reagan might have defended Bork on the ground that he was an exceedingly able, and exceedingly pure, conservative—but he didn’t. Instead, Reagan described Bork as an “even handed and open-minded” successor to the moderate Lewis Powell. The Senate didn’t buy it. The senators rejected Bork because he was ideologically rigid rather than open-minded—which was, after all, exactly why the president had wanted him on the bench.

The Bork hearings could have focused public attention to the aggressively ideological process that the Reagan administration used to select Bork. But nomination processes occur behind closed doors. The confirmation hearings, by contrast, were widely televised. Political battles over Supreme Court nominees were nothing new, but never before had they attracted Nielsen ratings like these.

Pundits and the public worried that this all looked “too political” to be healthy for a judicial system. The Bork hearings generated a spate of articles and books lamenting what Stephen Carter eventually called “The Confirmation Mess.” These complaints grew stronger after the genuinely tawdry hearings on Clarence Thomas in 1991.

The complaints had an impact. So too did careful coaching of nominees by White House advisers who taught nominees how to avoid answering questions about their jurisprudence. The last four sets of confirmation hearings—for Ruth Bader Ginsburg, Stephen Breyer, John Roberts, and Sam Alito—have been civil, polite affairs. For people convinced that the confirmation process had become “too political,” these formal rituals must come as a relief. But for those worried about congressional power to check presidential extremism, they are a worrisome development.

Meanwhile, the "nomination mess" (as political scientist Michael Comiskey termed it) continued unabated. As Jan Crawford Greenberg documents in Supreme Conflict, the Republican Party learned important lessons from its loss in the Bork hearings. George W. Bush refined, rather than abandoned, the search for ideologically pure conservatives. His staff supplemented the ideological criteria with another, practical one: they looked for judges who were not only ideologically pure but confirmable.

The result, manifest in the hearings on John Roberts and Sam Alito, was a mismatch between the President, who was able to run an aggressively ideological nomination process, and Democrats in the Senate, who were not only in the minority but were hamstrung by awkward expectations that the confirmation process should somehow be ‘apolitical.’ John Roberts, who last term established himself as a radically conservative Chief Justice, was able to skate through the hearings by describing himself as a neutral umpire. That myth will be the subject of my next post.

This post seems very biased. Surely Ruth Bader Ginsburg is no more ideologically open-minded than Antonin Scalia. No one considers her vote to be unpredictable on any issue that can be analyzed on right/left political lines. And surely the Republicans were just as "hamstrung" during her confirmation hearings as the Democrats were during the Roberts hearings. Maybe more so, since it doesn't look good to vote against a woman.

At least exercise a little honesty. Roberts is conservative, and in your worldview that may make him only slightly better than the devil, but the attempted smear of "radically conservative" is hardly accurate.

The partisan slandering of judicial nominees now know as Borking is a triumph of constitutional politics?

Here are some highlights of Dem "constitutional politics" at their slimiest:

Less than an hour after Reagan's nomination of Borkt, Ted Kennedy took to the Senate floor declaring, "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government."

The People for the American Way ran ads falsely accusing Bork of favoring “mass sterilization” and Gregory Peck made a commercial lying that Bork favored restoring literacy tests and the poll tax.

During debate over his nomination, Bork's video rental history was leaked to the press, which led to the enactment of the 1988 Video Privacy Protection Act.

During the Senate hearings, Dems slandered Judge Bork with accusations of racism, sexism, insensitivity, contempt for the Bill of Rights, and a willingness to see poor women sterilized. Senator Howell Heflin even questioned Bork's beard and "strange lifestyle."

This is the left's idea of a "constitutional triumph?"

Borking has more in common with doctored photographs and fictional stories in the National Enquirer than it does the Constitution.

I think Prof. Eisgruber might mean that the process was a triumph in the sense that we had a national conversation (of varying levels of sophistication) about constitutional law. That's a good thing.

That said, I think it's pretty clear that the left (for a change) did a good job of framing the terms of the debate in the Bork nomination. They were able to make the discussion about the "right to privacy" something that most people support (at least in the abstract). By doing so, they were able to convince Southern senators -who might have otherwise been supportive of Bork - to vote against his nomination.

Moreover, let's not get too self-righteous here my conservative friends. What if Clinton had (as he however briefly thought about doing) nominated Larry Tribe. I find it laughable to think that the Right would *not* have attempted to Bork him in exactly the same manner (i.e., extreme liberal, etc.)

This post seems very biased. Surely Ruth Bader Ginsburg is no more ideologically open-minded than Antonin Scalia. No one considers her vote to be unpredictable on any issue that can be analyzed on right/left political lines.

How so? Does she regularly issue angry dissents of one (more so than, say, the "ideological" Souter)? Can you really predict her vote on, say, taxing and regulatory matters? How is she "ideologically closed-minded"? Perhaps some specifics that salt he case for you.... Thanks in advance.

Just like Kennedy, you dishonestly coflate the fact that the Constitution does not provide a remedy for every alleged wrong with advocating the wrong.

Bork correctly observed that there is no right to an abortion in the Constitution. That result means that the States decide whether abortion should or should not be criminalized. Even if abortion was criminalized, no one is forcing a woman to kill her child and injure herself in an alley or anywhere else.

Bork also correctly observed that the Constitution does not grant Congress the power to pass anti discrimination laws which apply to private citizens and the commerce clause rationale for such laws was absurd. However, that does not prevent Congress from requiring that the States enact such laws as the price of getting federal money. Nor does it mean that Bork was advocating private racial discrimination.

Even you cannot figure out to what Kennedy was alluding to in the rest of his slanderous diatribe.

In any case, every single one of Kennedy's claims and your defenses of the same were without merit.

"Bork also correctly observed that the Constitution does not grant Congress the power to pass anti discrimination laws which apply to private citizens and the commerce clause rationale for such laws was absurd."

You can believe that's a "correct" interpretation if you want, but it's surely a radical one (has anyone on the Court in the past couple of decades held it?). It certainly seems fair and appropriate to me to inform the public that a judicial nominee believes Title VII is unconstitutional (a quarter century or so after it was passed).

I would think given the extremist views Bork has espoused since, e.g. in Slouching to Gomorrah, even some of his previous supporters would admit that Bork was and is indeed . . . well, an extremist.

If memory serves, the commerce clause argument used by the Supremes to uphold the Civil Rights Act of 1964 was that Congress could use its power to regulate interstate commerce to bar a restaurant from practicing private racial discrimination on the theory that the restaurant used out of state condiments which arrived via interstate commerce.

Even my Living Constitution Con Law professor had to admit that the racial discrimination at issue had no effect on interstate commerce and the end of ending private racial discrimination simply justified the means used of rewriting the Commerce Clause.

The Supremes' evisceration of the limits of the Commerce Clause was radical, not my correct observation of their evisceration.

Just like Kennedy, you dishonestly coflate the fact that the Constitution does not provide a remedy for every alleged wrong with advocating the wrong.

Regardless of what his own personal preferences might have been (and there's little to show that he would have been all that adverse to a ban on abortion, for instance), his evisceration of any means of redress for these rights would have meant in practise that they would have continued. That courts were needed to stop them shows that there was still popular sentiment for their continuation.

Bart: The Supreme Court upheld Title VII on both Commerce Clause and Title VII grounds. Beyond your anecdote about your Con Law prof., could you please answer my question as to whether any Justice of the last couple of decades has questioned the Commerce Clause part of the holding in any decision?

If memory serves, the commerce clause argument used by the Supremes to uphold the Civil Rights Act of 1964 was that Congress could use its power to regulate interstate commerce to bar a restaurant from practicing private racial discrimination on the theory that the restaurant used out of state condiments which arrived via interstate commerce.

No (see Atlanta Hotel 379 U.S. 241, 254 [1964] et seq.). I know that the drunks in Colorado Springs don't give you enough to afford Lexis/Westlaw, but Google and Findlaw are easy and free, at least for SCOTUS decisions. Remember, Google is your friend (and I don't mean for your standard "cut'n'paste" thoughtless and uncomprehending hackery).

Bart: The Supreme Court upheld Title VII on both Commerce Clause and Title VII grounds.

What are Title VII grounds? I do not recall that provision of the Constitution.

Are you referring to the 14th Amendment? If so, the 14th Amendment states in pertinent part:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

By its own terms, the 14th Amendment does not apply to citizens.

Beyond your anecdote about your Con Law prof., could you please answer my question as to whether any Justice of the last couple of decades has questioned the Commerce Clause part of the holding in any decision?

I do not recall any. Judges do not like to be called racists by drunken Senators and simply leave that area of the law alone. However, the Supremes have pulled back the reigns in Congress' abuse of the Commerce Clause power in later cases like Lopez.

"Bart" DePalma: If memory serves, the commerce clause argument used by the Supremes to uphold the Civil Rights Act of 1964 was that Congress could use its power to regulate interstate commerce to bar a restaurant from practicing private racial discrimination on the theory that the restaurant used out of state condiments which arrived via interstate commerce.

I know that the drunks in Colorado Springs don't give you enough to afford Lexis/Westlaw, but Google and Findlaw are easy and free, at least for SCOTUS decisions. Remember, Google is your friend (and I don't mean for your standard "cut'n'paste" thoughtless and uncomprehending hackery).

Some of us work for a living and do not have time to research every point for your education. However, even though you apparently have the time and the tools, you apparently do not know how to do the research.

Senators approve judicial nominees. Exactly what judge wants to be Borked and called a racist for daring to enforce the plain meaning of the Commerce Clause?

# posted by Bart DePalma : 4:21 PM

So what? If there are enough senators who want to impeach them for being racist, then apparently enough people feel that the Commerce Clause has a meaning that is not nearly as clear as you seem to think.

Apropos of nothing, y'all should email Prof Balkin and tell him to make Balkinization t-shirts/apparel available through the website. I'd buy one. (Yes, I already emailed him the suggestion, but we need to flood his inbox).

Even if abortion was criminalized, no one is forcing a woman to kill her child and injure herself in an alley or anywhere else.

Why don't you say that to the face of a woman who had an abortion under desparate circumstances, and see if you don't get slapped in the face, Bart?

Comments like this-- when the come out-- are one reason that a lot of liberals harbor grave suspicions that the pro-life movement isn't about protecting nascent life at all; it's about making sure women get punished for deciding to have sex.

Comments like this-- when the come out-- are one reason that a lot of liberals harbor grave suspicions that the pro-life movement isn't about protecting nascent life at all; it's about making sure women get punished for deciding to have sex.

# posted by Dilan : 4:41 PM

Not to mention that so many who are "pro-life" also seem to be pro-death penalty and pro-war.

BD: Even if abortion was criminalized, no one is forcing a woman to kill her child and injure herself in an alley or anywhere else.

Why don't you say that to the face of a woman who had an abortion under desparate circumstances, and see if you don't get slapped in the face, Bart?

I have a close relative who became a single mother and I counseled her not to have an abortion.

If you could not already tell, I am not afraid to be honest about my thoughts. I post under my real name and hardly pull any punches. The truth is the truth.

Comments like this-- when the come out-- are one reason that a lot of liberals harbor grave suspicions that the pro-life movement isn't about protecting nascent life at all; it's about making sure women get punished for deciding to have sex.

False attacks like "forcing women to have back alley abortions" or "punishing women for having sex" dispel any suspicion and confirm for those of us who are anti abortion that the pro abortion folks cannot defend abortion on its merits and are reduced to slanders.

You are correct that I meant to type "14th Amendment" when I typed "Title VII" the second time. I'm glad you figured out my error from context. On the other hand, I can't understand what you meant when you typed:

"By its own terms, the 14th Amendment does not apply to citizens."

Beyond that, I appreciate you admitting that the position that you, and according to you, Bork, take -- that that Title VII is unconstitutional -- has not been shared by any sitting Justice in the last several decades. That does, of course, establish that position as radical, which was my only point.

Your attempt to attribute the fact that no Justice has taken this position to Fear of Ted Kennedy is, of course, absurd, as I hope you, in your non-trolling moments, realize.

["Bart"]: If memory serves, the commerce clause argument used by the Supremes to uphold the Civil Rights Act of 1964 was that Congress could use its power to regulate interstate commerce to bar a restaurant from practicing private racial discrimination on the theory that the restaurant used out of state condiments which arrived via interstate commerce.

"This case was argued with No. 515, Heart of Atlanta Motel v. United States, decided this date, ante, p. 241, in which we upheld the constitutional validity of Title II of the Civil Rights Act of 1964 against an attack by hotels, motels, and like establishments."

"The absence of direct evidence connecting discriminatory restaurant service with the flow of interstate food, a factor on which the appellees place much reliance, is not, given the evidence as to the effect of such practices on other aspects of commerce, a crucial matter."

Id at 305.

BTW, it would come as a surprise to me that Bork agreed with Heart of Atlantaand was just kvetching about the condiments in Katzenbach.

Some of us work for a living and do not have time to research every point for your education.

You haven't researched any point for my education. Matter of fact, it is I that have had to correct you a number of times.

Not to mention the fact that you don't research (which does seem to be part of the problem). But the obvious cure for that is for you to STFU when you don't know what you're talking about (and don't have enough time because of your 'busy' work schedule to go actually do some real research and go look into it). So if you're so 'busy', can we at least agree to that?

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

I have a close relative who became a single mother and I counseled her not to have an abortion.

Bart, why don't you seek out some women who had abortions because they were in abusive marriages or relationships, or they were young and didn't want to tell their religious parents, or because they were too poor to raise the child?

See if they buy your argument that women who live in societies where abortion is illegal aren't "forced" to have unsafe abortions.

Or even better, why don't you go down to El Salvador, where abortion is illegal and women have died in botched abortions, and talk to women down there who have had to go through these excrutiating procedures.

Really, I am about the least essentialist feminist you could imagine, but your comments are the sort of thing that makes me think that women have a point when they say you have to be a woman to understand this. It is so easy for you-- knowing that you will never actually be put in this situation-- to tell poor, desparate women that no, they really don't need to terminate their pregnancy, even if carrying their baby to term will get them ostracized, beaten, or killed. You are such an expert Bart. It is just a pity that actual women faced with actually difficult choices don't have your moral certainty.

Really, you need to walk a mile in other people's shoes. Abstract pronouncements about contestable philosophical propositions have maimed and killed women in desparate circumstances. You need to have a lot more humility about this.

Bart, why don't you seek out some women who had abortions because they were in abusive marriages or relationships, or they were young and didn't want to tell their religious parents, or because they were too poor to raise the child?

This is not a difficult subject. Instead of the child being inside the womb, assume for the purposes of applying the homicide laws that the child was newly born.

A mother can not lawfully kill her newly born child because her parents, husband or other significant others disapprove of the sexual relations which conceived the child.

Nor may a mother kill her newly born child because she cannot economically support the child.

Now tell me again why the law should be different for the same child prior to birth?

This is not a difficult subject. Instead of the child being inside the womb, assume for the purposes of applying the homicide laws that the child was newly born.

A mother can not lawfully kill her newly born child because her parents, husband or other significant others disapprove of the sexual relations which conceived the child.

Nor may a mother kill her newly born child because she cannot economically support the child.

Now tell me again why the law should be different for the same child prior to birth?

Bart, you are missing the point. I understand that there is a debate about abortion, and that reasonable people can take the pro-life position. What you were doing, however, is belittling the circumstances that actual women face that drive them to have illegal abortions. You seem to have no idea what it might be like to be a battered wife who gets pregnant when her husband rapes her, or a teenage girl who feels her parents will kill her if she tells them she got pregnant.

Saying that "nobody has to get an illegal abortion" is missing the fact that the women who make these decisions are sometimes in extremely difficult situations and to them this isn't simply an abstract philosophical debate about when life begins. That's why my earlier comment about pro-lifers who are really concerned about female sexuality is no slander-- the truth is, there's a lot of "if you don't want to get into that situation, don't get pregnant in the first place" behind the arguments about life beginning at conception.

Now, to answer your question (which as I noted did not really come to grips with my point), the problem is that you assume that (1) the fetus inside the womb has the same rights as a fetus outside the womb, and (2) that fetuses at earlier stages of development, which cannot feel pain, are not viable, are not conscious, do not have circulatory systems, and don't look like human babies have the same rights as a fetus at 9 months.

Both those propositions are, in fact, extremely contestable. With respect to (1), imposing a duty not to kill a born infant does not interfere with the bodily integrity of the mother, because the infant is already outside the womb. In contrast, imposing a duty not to kill an unborn fetus does interfere with the rights of the mother, because the government is saying that she must be forced to allow an unwanted organism to develop within her body.

With respect to (2), restrictions on late-term abortions are one thing, but the problem with the pro-life movement is that it claims that a zygote is the same thing as a born baby. It isn't. Neither is a blastocyst. Yes, at some point in the pregnancy, the fetus becomes indistinguishable from a human baby (except as to point (1), above). But it isn't at conception. And it isn't at the blastocyst stage. And it isn't when the fetus cannot think or feel pain or have a conscious will to live or survive outside the womb.

But that's all beside the point. Your real problem, your real inhumanity and lack of compassion, is that you can't see that to a desparate woman, debates about when life begins are secondary to escaping from the situation at hand.

It is my experience as a prosecutor that life simply deals some people a bad hand and they feel compelled to commit crimes or otherwise harm themselves or others. However, that did not keep me from doing my job and prosecuting them for the crimes they committed. Rather, I would try to take their circumstances in mind when I made a plea offer or recommended a sentence after conviction.

This issue is very simple to me. The unborn child is or is not a person. If she is a person, then I would apply the same laws as for a born child.

I have already strayed way off topic answering questions posed to me and I will not abuse our hosts' hospitality by turning this into a 100 post thread on whether an unborn child is a person. So you will have to forgive me if I leave our discussion here.

A mother can not lawfully kill her newly born child because her parents, husband or other significant others disapprove of the sexual relations which conceived the child.

Nor may a mother kill her newly born child because she cannot economically support the child.

Now tell me again why the law should be different for the same child prior to birth?

Now "Bart" knows (or at least should know that this isn't true. Even the loathed Roe decision established a continuum of interest in foetal "rights", so that third trimester (post-viability) abortions may be regulated and only relatively narrow exceptions for competing interests will supersede the "rights" of the foetus.

"Bart" likes to pretend though, for 'rhetorical purposes', that "abortion on demand up to the point of birth" is the law. How dishonest.

Justices take positions contrary to Ted Kennedy, Democrats, and academics routinely. And after they are appointed -- for life -- to the Supreme Court, they need not worry one bit about what these folks think. This fact is amply demonstrated by any number of conservative decisions the court has handed down and conservative dissenting opinions.

Again, the argument you attribute to Bork, that Title VII is unconstitutional is, in fact, a radical opinion, far out of the mainstream of U.S. legal thought.

Obviously, you have the right to advocate for that position. But the issue was whether Bork could accurately be described as an extremist, and on this issue he was.

We could get into other issues as well, but apparently, your defense would be that much of modern U.S. Constitutional law has been formed because sitting Supreme Court justices are afraid of liberals. Aside from that being facially absurd, I don't know what you would use as a indicator that an opinion was in fact outside the mainstream.

Everyone has a right to life. However, those who threaten to take or take the lives of others waive that right to life.

The left turns the concept of innocent life on its head by fighting tooth and nail to kill innocent children but spare the lives of murderers, war criminals and terrorists.

I would suggest that my position is more internally consistent unless your goal is to reward evil.

Every "one"? Even cows? I do like my red meat. As far as I know they are "innocent life". And chickens. Chicken is OK, annoying and not too bright, but innocent life. Eggs are chicken embryos. I like eggs. So perhaps the term "innocent life" is problematic, unless Bart has become a Gaian, PETAn, Vegan. Then again, an artichoke is "innocent life". Are you also a Jain, Bart?

Bartbuster said...That's simple. Prior to birth the fetus is not a human being. Life starts at birth.

So, sperm and eggs are not alive? Not life? What about your parents? Were they alive? Life?

"Life" began long before your birth, but we still kill and eat innocent chickens and even their embryos. I like my eggs scrambled hard.